Immigration Bill

Lord Avebury Excerpts

Wednesday 5th March 2014 Lords Chamber

[Lord Avebury (LD)]

I am concerned that the reduction in the number of immigration decisions that can be appealed from 17 to four, as the Bill intends, may lead to injustice and that the administrative review system which is to be substituted for the right to appeal to the First-tier Tribunal in those cases is manifestly unfit for purpose in making decisions that can fundamentally affect the whole course of an appellant’s life. As my noble friend Lord Paddick says, in all the cases where there is an appeal at present, the file goes to the presenting officer, who conducts the case before the tribunal. That official is in a more senior grade than the executive officer who made the original decision, which may be a partial reassurance to my noble friend; that person conducts an administrative review, which can lead to the refusal being withdrawn, and does so in a small proportion of cases. However, following this process, the Home Office loses half its appeals. It has to be assumed, therefore, that half the cases that go through administrative review as a result of this Bill are likely to be wrongly decided against the applicant.

The injured applicant can still make an appeal on human rights grounds, some of which are eligible for legal aid, and it is expected that quite a few will do so, cancelling out, as my noble friend hints, some of the savings that the Government hope to achieve by restricting the common law right of access to the courts. There will also be applications for judicial review, although legal aid for that purpose will be available only in a limited set of cases, including some but not all refugees, but excluding trafficked persons and victims of domestic violence. Does the net saving of £219 million over 10 years, which is expected according to the Home Office briefing, take into account the estimated costs of these appeals, and can my noble friend give us the figure?

The briefing says that the service standard will be to complete the administrative review within 28 days. That is the existing service standard, but when the chief inspector looked at the visa section at Amman it was found that the average time taken was 74 days. The statement of intent may say that we look to achieve the standard of 28 days, but it has not been done in the past. Although I dare say that there has been some improvement since the chief inspector visited Amman, it is doubtful whether the system will be able to keep up with the additional 40,000 cases a year without extra staff and extra training, for which I assume that allowance has been made in the arithmetic. I would be grateful for reassurance on that point. What about the half a million backlog identified by the Home Affairs Select Committee? Are they entitled to an administrative review and have the Government considered how they will deal with the additional cases that will arise when landlords, university staff and health workers are pressed into service as ancillary immigration officers?

Administrative review is a way not of securing fairness and justice for immigrants who are refused leave to enter or remain, but of reducing the number who would have succeeded if they had been able to put their case to the tribunal. It may not even result in any saving of public funds. The right way to achieve both those objectives would be, as my noble friend Lady Hamwee said, to tighten up on the training and supervision of the case workers who make the original decisions so that they get it right first time. That should have been the aim; then we would not even have thought about depriving people of their legitimate rights. At the very least, we should give the Home Office the chance to prove that administrative reviews can be made effective by the means proposed in this amendment. If it can be shown that the existing prehearing reviews pick up wrong decisions, it is well and good; but if the outcome is simply to confirm that reviews are no substitute for the judicial process, Clause 11 should not come into force.

[Baroness Manzoor (LD)]

My Lords, I support my noble friends Lady Hamwee, Lord Paddick and Lord Avebury, and align myself with the comments that they made regarding a robust and independent review. As the previous Legal Services Ombudsman and Legal Services Complaints Commissioner, I know the importance of this. It is imperative that the administrative review is not only independent but is seen to be independent for people to have confidence in the decision. I give your Lordships this analogy: a manager of a football team does not referee a game in which his own team is playing.

--- Later in debate ---

[Lord Avebury]

My Lords, Clause 14 circumscribes the freedom of the courts to interpret Article 8 of the ECHR dealing with the right to respect for private and family life. We know from the Minister’s reply to an earlier amendment and from paragraph 18 of the letter that he wrote to noble Lords after Second Reading that there are to be further restrictions in the rules and guidance about what the courts can do regarding Article 8. This clause in effect instructs the court or tribunal which is required to determine whether a decision to remove or deport someone breaches Article 8 to have regard to considerations which are set out at some length. In particular, it invites the court to consider factors that could make the best interests of the child less than paramount in deciding whether the child’s family should be removed.

The noble Baroness, Lady Lister, mentioned the case of ZH (Tanzania), in which a child’s best interests lay in remaining in the UK, and the question was whether the carer should be removed. In that case, the noble and learned Lord, Lord Kerr, said:

“What is determined to be in a child’s best interests should customarily dictate the outcome of cases such as the present … and it will require considerations of substantial moment to permit a different result”.

It seems to me that the Government are saying to the courts that in future they should decide against the appellant where the circumstances are similar to those in ZH, although, of course, it would be possible that, having considered the factors listed in Clause 14, the courts could find that the “substantial moment” test had not been satisfied. Possibly, too, if our own courts throw out carers wholesale, even where the best interests of the child dictate that they should be allowed to remain, a different view will be taken in Strasbourg. I would like to know whether the Government thought about that in drafting Clause 14.

The doctrine of “margin of appreciation” allows states a degree of discretion when taking legislative action in the area of a convention right, but the limits of discretion are defined by case law. Only a narrow margin of appreciation is permitted where a particularly important facet of an individual’s identity or existence is at stake—see Evans v UK—and, perhaps even more closely relevant, where an “intimate aspect of private life” is at stake under Article 8—see Dudgeon v UK, where it was ruled that there must be particularly serious reasons before interference on the part of public authorities can be legitimate in those cases.

The Children’s Commissioner wrote a letter to the then Minister for Immigration in August last year about the operation of the Immigration Rules, and some of the matters that she raised then are directly relevant to this clause. Article 9(1) of the CRC provides for a child’s right not to be separated from his or her parents other than in strictly defined circumstances and where it proves necessary in the child’s best interests. There is a positive obligation on the state to ensure that a child is not separated from its parents unless the child’s best interests require it. The commissioner is now considering the effect on children of this clause, and it would be useful to know whether she was consulted about the drafting.

I am concerned that this clause undermines our obligation under the CRC and that it may lead to unnecessary litigation, damaging to our reputation at the European Court of Human Rights. I hope that it will be reconsidered before Report.

[Lord Pannick]

My Lords, I add my support to the general concerns expressed so eloquently by the noble Baroness, Lady Lister. I have two questions for the Minister. First, can he confirm, as I assume he will, that nothing in Clause 14 is intended to detract from the important principle of law that the best interests of the child are a primary consideration for decision-makers in this context? It is important for Pepper v Hart purposes that the noble and learned Lord makes the position unambiguously clear.

Secondly, before Report, will the Minister please undertake to give further consideration to the advantages of referring in Clause 14 to the best interests of the child? I ask that question as I have some difficulty in understanding how the test in new Section 117C(5)—that is, exception 2: the test of whether the effect of deportation on the child would be unduly harsh—is compatible with looking to the best interests of the child as a primary consideration.